IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

Zuhal Osman, :

 Plaintiff, :

 v. : Case No. 2:11-cv-577

Mission Essential Personnel, : JUDGE ALGENON L. MARBLEY

LLC, Magistrate Judge Kemp 

Defendant. :

ORDER

On September 19, 2011, defendant Mission Essential

Personnel, LLC filed a motion to dismiss the complaint under

Fed.R.Civ.P. 12(b)(6), arguing that some (but not all) of the

claims asserted in the complaint should be dismissed on various

grounds. The motion is fully briefed and remains pending.

On March 29, 2012, Mission Essential Personnel moved for a

stay of discovery pending a ruling on the motion to dismiss. The

motion states that discovery was served on Mission Essential

Personnel on March 22, 2012, and that if the motion to dismiss

were granted, a substantial amount of the time needed to respond

to that discovery could be saved. Plaintiff responded on April

23, 2012, making two arguments: (1) that the mere pendency of a

motion to dismiss does not justify a stay of discovery, and (2)

that because the motion to dismiss, even if granted, would not

result in a complete dismissal of the case, there is no reason to

stay discovery. Mission Essential Personnel has not filed a

reply.

A stay of discovery for any reason is a matter ordinarily

committed to the sound discretion of the trial court. Chrysler

Corp. v. Fedders Corp.. 643 F.2d 1229 (6th Cir. 1981). In ruling

upon a motion for stay, the Court is required to weigh the burden

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of proceeding with discovery upon the party from whom discovery

is sought against the hardship which would be worked by a denial

of discovery. Additionally, the Court is required to take into

account any societal interests which are implicated by either

proceeding or postponing discovery. Marrese v. American Academy

of Orthopedic Surgeons, 706 F.2d 1488, 1493 (7th Cir. 1983). 

When a stay, rather than a prohibition, of discovery is sought,

the burden upon the party requesting the stay is less than if he

were requesting a total freedom from discovery. Id.

However, one argument that is usually deemed insufficient to

support a stay of discovery is that a party intends to file, or

has already filed, a motion to dismiss for failure to state a

claim under Rule 12(b)(6). As one court has observed, 

The intention of a party to move for judgment on the

pleadings is not ordinarily sufficient to justify a

stay of discovery. 4 J. Moore, Federal Practice §

26.70[2], at 461. Had the Federal Rules contemplated

that a motion to dismiss under Fed.R.Civ.Pro. 12(b)(6)

would stay discovery, the Rules would contain a

provision to that effect. In fact, such a notion is

directly at odds with the need for expeditious

resolution of litigation.... Since motions to dismiss

are a frequent part of federal practice, this provision

only makes sense if discovery is not to be stayed

pending resolution of such motions. Furthermore, a

stay of the type requested by defendants, where a party

asserts that dismissal is likely, would require the

court to make a preliminary finding of the likelihood

of success on the motion to dismiss. This would

circumvent the procedures for resolution of such a

motion. Although it is conceivable that a stay might be

appropriate where the complaint was utterly frivolous,

or filed merely in order to conduct a "fishing

expedition" or for settlement value, cf. Blue Chip

Stamps v. Manor Drug Stores, 421 U.S. 723, 741, 95

S.Ct. 1917, 1928, 44 L.Ed.2d 539 (1975), this is not

such a case.

Gray v. First Winthrop Corp., 133 F.R.D. 39, 40 (N. D. Cal.

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1990). See also Turner Broadcasting System, Inc. v. Tracinda

Corp., 175 F.R.D. 554, 556 (D. Nev. 1997) (“a pending Motion to

Dismiss is not ordinarily a situation that in and of itself would

warrant a stay of discovery....”). Thus, unless the motion

raises an issue such as immunity from suit, which would be

substantially vitiated absent a stay, or unless it is patent that

the case lacks merit and will almost certainly be dismissed, a

stay should not ordinarily be granted to a party who has filed a

garden-variety Rule 12(b)(6) motion.

Here, Mission Essential Personnel has not argued its motion

to stay in light of these factors. Further, the motion to

dismiss does not raise either immunity from suit or a clear-cut

issue such as the statute of limitations, but argues a variety of

reasons why six of the seven claims at issue are insufficient. 

Plaintiff has filed a response which is some 22 pages long. 

While the length of the response is not itself determinative of

whether there are good faith arguments to be made in opposition

to the motion to dismiss, it appears from a review of the

response that it contains a number of non-frivolous arguments,

and it is by no means a virtual certainty that Mission Essential

Personnel will prevail either on the entirety of its motion, or

any specific portion of it. Given this fact, a stay of discovery

is simply not appropriate.

For all of these reasons, defendant’s motion to stay

discovery (#14) is denied. Defendant shall respond to the

written discovery which has been served within 30 days of the

date of this order.

Any party may, within fourteen days after this Order is

filed, file and serve on the opposing party a motion for

reconsideration by a District Judge. 28 U.S.C. §636(b)(1)(A),

Rule 72(a), Fed. R. Civ. P.; Eastern Division Order No. 91-3, pt.

I., F., 5. The motion must specifically designate the order or

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part in question and the basis for any objection. Responses to

objections are due fourteen days after objections are filed and

replies by the objecting party are due seven days thereafter. 

The District Judge, upon consideration of the motion, shall set

aside any part of this Order found to be clearly erroneous or

contrary to law.

This order is in full force and effect, notwithstanding the

filing of any objections, unless stayed by the Magistrate Judge

or District Judge. S.D. Ohio L.R. 72.4.

/s/ Terence P. Kemp 

United States Magistrate Judge

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